Whether the admissibility of evidence of the statement prepared in a manner that the prosecutor summonss the witness who has already finished testimony at a preparatory hearing or during a public trial and reverses the testimony favorable to the defendant (negative)

[Majority Opinion] It is against the legal structure of the current Criminal Procedure Act aiming at the principle of party, the principle of public trial-oriented principle, and the principle of directness, and it is against the fundamental right guaranteed by Article 27 of the Constitution, i.e., the right to a trial where all evidence is investigated and stated in the presence of a judge, and the defendant is given an opportunity to attack and defend against it. Thus, such written evidence is inadmissible unless the defendant agrees that it can be admitted as evidence, and even if the previous witness, who is the original person of the protocol, appears in the court again, recognized the authenticity of the establishment of the written statement, and was given an opportunity to cross-examine the defendant, the above written statement itself cannot be admitted as evidence, regardless of the fact that the testimony itself can be admitted as evidence of guilt.

[1] (1) Article 12(1) of the Constitution explicitly provides for the right not to punish witnesses without due process; Article 27(1) and (3) of the Criminal Procedure Act explicitly provides for the right to fair and prompt trial by judges; Article 161-2 of the Criminal Procedure Act provides for the witness examination system including the defendant's right to cross-examination; Article 310-2 of the Criminal Procedure Act provides for the witness's testimony before the court and the defendant's opportunity to cross-examination is not granted; thus, all evidence in a criminal trial shall be directly examined before the judge and the defendant's right to cross-examination is guaranteed as a matter of principle, since the defendant's testimony is not the same as the witness's testimony, which is the exception provided in Article 310-2 of the Criminal Procedure Act; Article 312 and Article 313 of the Criminal Procedure Act shall be strictly interpreted and applied to the witness testimony prepared by the court at the same time as the witness's prior to the trial date; and Article 312 of the Criminal Procedure Act provides for the witness's testimony prepared by the court at the same time as evidence.

[Dissenting Opinion] Where it is recognized that any illegality in the process of preparing a statement after the testimony is not opened, and the right to cross-examination is guaranteed pursuant to Article 312(1) of the Criminal Procedure Act, the admissibility of evidence shall be admitted, but with respect to the probative value of evidence of the witness who made the testimony at once in this case, the contents of the first statement of the witness, the contents of the later testimony, the reasons why the prosecutor again received the second statement of the witness, the reasons why the prosecutor became subject to the second statement of the witness, the procedure therefor, and the contents of the statement, etc. shall be examined, and it shall be judged whether there is any illegality in denying the admissibility of evidence. Accordingly, we cannot agree with the majority opinion that the admissibility of evidence is denied merely on the ground that the statement of the person who made the testimony at once is made.

Articles 312, 313, and 318 of the Criminal Procedure Act

Supreme Court Decision 4288Do128 delivered on July 15, 195 (No. 3-1, 33) Supreme Court Decision 67Do613 delivered on July 4, 1967 (No. 15-2, 27) Supreme Court Decision 68Do1481 delivered on July 25, 1969 (No. 17-2, 114) Supreme Court Decision 83Do1632 delivered on August 23, 1983 (No. 1983, 1462), Supreme Court Decision 84Do1376 delivered on November 27, 198 (No. 1985, 101) (No. 19829) (No. 19829, Dec. 28, 192); Supreme Court Decision 91Do2379 delivered on September 25, 196 (No. 1969)

Defendant

Defendant

Attorney Long-Term

Cheongju District Court Decision 98No1102 delivered on February 23, 1999

The appeal is dismissed.

1. Regarding ground of appeal No. 1

According to the records and the reasoning of the judgment of the court below, the non-indicted witness statement prepared by the prosecutor against the non-indicted on October 9, 1998 (hereinafter referred to as "the statement of this case") was present as a witness on the fourth trial date of the court of first instance on August 25, 1998 and testified to the effect that some of the defendant's defenses correspond to the prosecutor's defenses through the main examination of the prosecutor and the cross-examination by the defendant, and then returned again to the prosecutor's office according to summons. The prosecutor, without proceeding to examine the non-indicted as the suspect of a separate perjury case, re-examines the non-indicted witness's testimony to the effect that the part corresponding to the defendant's defenses is not true, and the prosecutor submitted the this case's statement of this case as evidence, and the defendant was admitted to be admitted as evidence, and the non-indicted witness at the request of the prosecutor thereafter again made the testimony at the court of first instance on October 27, 1998.

However, it is against the legal structure of the current Criminal Procedure Act aiming at the principle of party, the principle of public trial-oriented principle, and the principle of directness, and it is against the fundamental right guaranteed by Article 27 of the Constitution, i.e., the right to a trial where all the evidence is investigated and stated in the presence of a judge and the defendant is given an opportunity to attack and defend against it. Thus, such written evidence is inadmissible unless the defendant agrees that it can be admitted as evidence, and even if the previous witness who is the original person who made the original statement again appears in the court and recognized the authenticity of the establishment of the written statement and given the opportunity to cross-examine the defendant, the above written statement itself cannot be admitted as evidence, regardless of the fact that the testimony itself can be admitted as evidence of guilt.

On the other hand, the Supreme Court Decisions 92Do155 delivered on August 18, 1992, which held that if the previous witness, who is the original person making the original statement, is given an opportunity to cross-examine again on the later trial date, the above written statement may be used as evidence of guilt if he/she is given an opportunity to cross-examine the defendant, and the above written statement, which held that it is admissible as evidence of guilt, shall be modified to the extent that it conflicts with this.

Therefore, the judgment of the court below that recognized the admissibility of evidence of the statement of this case as one of the evidence of conviction is erroneous in the misapprehension of legal principles as to the admissibility of evidence of the original statement of this case, but on the other hand, as examined later, it does not impede the finding of the defendant guilty even if the remaining evidence except the above statement of evidence is based on the remaining evidence in this case. Thus, the above illegality committed by the court below did not affect the conclusion of the judgment, and the argument in this part of the ground of appeal is without

2. Regarding ground of appeal No. 2

Article 201-2 of the Criminal Procedure Act stipulates that a request for detention warrant for a suspect arrested in relation to the request for detention warrant and examination of the suspect is divided into a request for detention warrant (paragraphs 1 and 2) and a request for detention warrant for any other suspect (Paragraph 3). According to this, in the case of a request for and issuance of a detention warrant for an arrested suspect, unlike the case of a arrested suspect, a public prosecutor or a judicial police officer as a public prosecutor or a judicial police officer need not notify

According to the records, since it is evident that the defendant applied for a detention warrant without being arrested, the investigative agency failed to notify the defendant of the right to request an examination in this case, and there is no evidence to prove that the defendant was unfairly detained. Therefore, the allegation in the grounds of appeal on this premise is without merit.

3. As to the grounds of appeal Nos. 3 and 4

In light of the records, even if the evidence stated in the reasoning of the judgment of the court of first instance, other than the written statement of this case, which was cited by the court below, is reviewed, it is not sufficient to find the guilty guilty of the crime in the judgment of the court of first instance. Therefore, the court below did not err in misconception of facts or incomplete deliberation, etc.

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except there is a dissenting opinion by Justice Cho Chang-sik, Justice Lee Jae-soo, Justice Cho Jong-sung, Justice Cho Jong-sik, and Justice Cho Jae-dam as to the judgment in paragraph (1) of this decision, and there is a supplementary opinion to the majority opinion by Justice Kim Jong-soo.

5. Opinion concurring with the Majority by Justice Kim Jong-soo is as follows.

A. Article 310-2 of the Criminal Procedure Act (hereinafter referred to as the "Act") provides that "other than hearsay evidence and the limitation of admissibility of evidence, a document stating a statement in place of the statement at a preparatory hearing or on a trial date or a statement of another person's statement at a preparatory hearing or on a trial date shall not be admitted as evidence." Thus, the written statement of this case falls under "a document stating a statement in place of the statement at a preparatory hearing or on a trial date, and submitted it to the court" as it falls under "a document stating a statement in place of the statement at the preparatory hearing or on the trial date" as provided in Article 311 through 316 of the Act, and it does not fall under exceptions of Article 311 to Article 316 of the Act. However, the written statement of this case falls under Article 314 of the Act, which provides exceptions in terms of necessity, Article 315 of the Act and Article 316 of the Act, which provide for exceptions, and Article 316 of the Act, which provides admissibility of evidence, and it does not constitute evidence of this case.

(1) Article 12(1) of the Constitution explicitly provides for the right not to be punished without due process; Article 27(1) and (3) of the Constitution explicitly provides for the right to fair and prompt open trial by the law of the judge; Article 161-2 of the Act provides for the cross-examination system including the defendant's right to cross-examination; Article 310-2 of the Act provides for the defendant's right to cross-examination; and Article 310-2 of the Act does not provide for the defendant's right to cross-examination but provides for the defendant's right to cross-examination; thus, in principle, all evidence in a criminal trial guarantees the directness that the defendant's statement should be made and examined in the presence of the judge and the right to cross-examine evidence unfavorable to the defendant. Thus, it is natural that Articles 312 and 313 of the Act should be strictly interpreted and applied.

(2) On the other hand, the law provides that the examination of witness in Part 12 shall be conducted by the court; Part 2 shall be conducted by the prosecutor and judicial police officer; Part 3 shall be conducted by the evidence in Part 2, Section 2. Among these, the protocol prepared in accordance with the procedures for examination of witness by the court of the lawsuit after the institution of the public prosecution shall be conducted by the judge who is not the court of the lawsuit; Article 184 of the Act or Article 21-2 of the Act, which is made in accordance with the procedures for examination of witness by the judge who is not the court of the lawsuit before the first public trial; Article 312 (1) of the Act shall be made in accordance with the former part of Part 1; Article 314 of the Act, which provides that the protocol prepared in accordance with the methods for examination of suspects who is not the suspect; Article 312 (1) of the Act, which provides that the term "the court of the lawsuit of the public prosecutor before or after the first public prosecutor's examination of suspects," and Article 131 of the Act shall be used as evidence.

Therefore, the instant protocol of statement is prepared after the concept of the suspect is extinguished due to the prosecution by the defendant, and it does not correspond to the protocol in which the statement of "a person who is not a suspect" as scheduled by Article 312 of the Act is written (in addition to Articles 311 and 313 of the Act, it is difficult to explain the reason why the term "a suspect or a person who is not a suspect" is used in Article 312 of the Act, unlike Articles 31 and 313 of the Act), and Article 313 of the Act also provides documents other than Articles 311 and 312 of the Act, and it cannot be deemed that the said protocol of statement is the same as the instant protocol of statement. Thus, the instant protocol of statement does not constitute the protocol in Article 312 of the Act

(3) In addition, after the institution of a public prosecution was instituted, the public prosecutor’s investigation duties as an investigative agency and the institution maintaining the public prosecution, i.e., the institution concurrently carrying out the litigation as a party, but the investigation and litigation acts should be strictly distinguished in its nature. The protocol or document under Article 312 or 313 of the Act refers to the evidence prepared or collected by the investigative agency while conducting the investigation.

However, according to the facts in the instant case, the prosecutor did not admit or investigate the witness in preparing the instant protocol of statement against the previous non-indicted witness, and therefore, it is reasonable to view that the act of preparing such protocol of statement is merely a voluntary method, not a procedure of examination of witness in his office, but a procedure of examination of witness at his office, since it is not a court, it should be viewed that the act of the prosecutor is on the extension of the procedural act, i.e., re-examination conducted by the party who is the institution maintaining the public prosecution, rather than an investigation conducted by the investigative agency, and it cannot be viewed that the protocol of this case, which was written as a result, falls under the protocol or document as provided in Article 312 or 313 of the Act.

Furthermore, even if the substance of the instant protocol of statement falls under the separate interrogation of the Nonindicted Party as to the Nonindicted Party, the record reveals that the right to refuse to make statements under Article 200(2) of the Act was not notified at the time of preparing the instant protocol of statement. In this regard, the admissibility of the instant protocol of statement is denied (see Supreme Court Decision 92Do682, Jun. 26, 1992).

(4) In addition, when considering the above principles of directism and the relevant legal provisions comprehensively, Article 312 or 313 of the Act is that the court of the lawsuit which directly examines the case at the time when the protocol or statement, etc., which is hearsay evidence, was prepared, exceptionally granting admissibility of evidence under certain conditions, taking into account the circumstances in which the court of the lawsuit, which directly examines the person making the original statement, etc., and could not directly listen to the facts that he experienced, such as this case, has been summoned as a witness and stated directly in the presence of a judge, and it is possible to further testify thereafter, the court of the lawsuit must summon the witness ex officio or at the request of a party and directly summon the witness and submit it as evidence of guilt. Nevertheless, if the prosecutor prepared a written statement against the previous witness and submitted it to the previous witness as evidence of guilt, it is clear that it is hearsay evidence made at a time when the court directly examines it, and thus, it cannot grant admissibility of evidence on the ground of Article 312 or 313. On the contrary, the principle of legislative intent of Article 190-16.

B. From the perspective of the right of the defendant who is the party to the criminal procedure, the protocol of statement in this case is inadmissible.

The fundamental rights of the people stipulated in Article 27(1) and (3) of the Constitution include the right to be tried in which all evidential materials are examined and stated in the presence of a judge and the opportunity for the defendant to attack and defend against them is practically given. After the institution of a public prosecution, the defendant acquires the status of a party from the standpoint of the suspect subject to investigation. Accordingly, the law gives the defendant the right to attend a public trial (Article 276), the right to apply for evidence (Articles 294), the right to participate in examination of evidence (Articles 163, 121, 145, and 176), the right to cross-examine the witness in the examination of evidence (Article 161-2), the right to raise an objection against the examination of evidence (Article 296), and the right to raise an objection against the examination of evidence (Article 296). If the defendant is not given an opportunity to attack the witness who is a person subject to the public trial, the presiding judge shall be declared as evidence 297.1986.6.65.86.65.65.

However, despite the fact that the statement of this case was made after the defendant had the status as a party upon the prosecution, it is clear that the defendant's right to cross-examination is guaranteed, as well as the defendant's right to cross-examination is made at all without the defendant's or defense counsel's participation. Thus, in comparison with the examination protocol of the court mentioned above, there

C. Not only is it difficult to readily conclude that any evidence has been collected after the prosecution was instituted, but also can no longer grow up even after a public prosecutor, who is a public institution, has been prosecuted for the purpose of maintaining a public prosecution. However, the protocol or documents prepared and collected in the process are not admissible as a matter of course, but the admissibility of evidence is determined according to the limitation and requirements set by the law on the method of evidence in terms of the guarantee of human rights and party-oriented trials, principle of court-oriented trials, and principle of directness. This can also be seen easily by viewing that even if a judicial police officer lawfully prepared a suspect interrogation protocol at the beginning stage of the investigation at the beginning of the investigation, if the defendant or defense counsel does not recognize the contents thereof, the admissibility of evidence can not be granted.

Therefore, it is a separate issue whether an investigation is possible or necessary after a prosecution is instituted, and whether the instant protocol of statement is admissible as evidence, and it does not constitute an unlawful investigation after a prosecution is instituted, on the grounds that the admissibility of the instant protocol of statement is denied. As long as the instant protocol of statement is admissible, the previous precedents are considered not to have neglected this point.

D. From the perspective of discovery of substantial truth, there is a counterargument that the admissibility of the instant protocol of statement is not correct.

Rather, the principle of direct or hearsay rule contributes to the finding of substantial truth and the achievement of fair trial by allowing a judge to form accurate conviction and give a defendant an opportunity to directly state his/her opinion on evidence. The logic that an oath made with a warning of punishment for perjury and a defendant's cross-examination is more useful for the discovery of substantial truth in the prosecutor's office than the testimony made by a public prosecutor after he/she takes an oath with a warning of punishment for perjury and is subject to the defendant's cross-examination is unreasonable, and Article 297 of the Act provides a device to leave the office and make a statement when the witness recognizes that he/she cannot make a sufficient statement in the presence of a defendant or a person in the face of a finance. Furthermore, in light of the circumstances surrounding the preparation of the previous Supreme Court's ruling that the same as the statement of this case is admissible, it is not persuasive that the discovery of substantial truth is not persuasive.

6. Dissenting Opinion by Justice Cho Chang-chul, Justice Lee Jae-soo, Justice Seo-sung, Justice Cho Jae-sik, and Justice Lee Jae-dam is as follows.

A. The Korean Criminal Procedure Act is a device under the evidence law to guarantee fundamental human rights and to realize the objective of discovery of substantial truth, and provides that the scope of conviction evidence of facts charged shall not be admissible as evidence, and that the probative value shall be determined according to the free trial by the judge with respect to evidence for which the admissibility of evidence has not been excluded by the provisions.

In addition, the purpose of the operation of such criminal evidence law is to contribute to the realization of due process clause in Article 12 (1) of the Constitution, the right to a trial in Article 27 of the Constitution, the party principle, the trial-oriented principle, and the direct principle.

Therefore, in order to conclude that documents submitted by a prosecutor as evidence of guilt are inadmissible as evidence, even if they fall under or do not fall under the exclusion provision of admissibility, they shall be admitted as evidence unless they clearly violate the guidance ideology of the above criminal procedure, and unless there is any ground to deny admissibility, they shall be entrusted to the judge's free judgment on the value of evidence, and shall be operated to realize the principle of party, the principle of court-oriented trial, and the principle of direct caution.

B. According to the assertion of the majority opinion, where a witness who appeared and testified as a witness on the trial date receives again the witness's statement after the prosecutor, the reason or procedure behind the new witness's statement, the contents of the witness's statement and the contents of the witness's statement, and it results in uniformly denying the admissibility of the witness's statement without any procedure in any lawsuit in order to acquire the admissibility of the witness's statement.

However, it is necessary to further examine whether such processing is based on the legal basis, and what net and adverse functions are to protect the human rights of the accused or the witness concerned and to find substantial truth, and whether it contributes to the realization of the principle of party or the principle of direct trial-oriented trial in the actual litigation.

C. The majority opinion and the concurring opinion state that Article 312 of the Criminal Procedure Act, which is an exception to Article 310-2 of the Criminal Procedure Act (hereinafter referred to as the "Act"), which provides that the admissibility of evidence shall be excluded, refers to only the protocol prepared by the prosecutor before the prosecution, which is a suspect, is written.

However, the term "person who is not a suspect" refers to a person other than a suspect who has become a defendant, and it should not be viewed that the statement representing the point of time in which the suspect was the defendant's status changes.

In light of the provisions of evidence law limited to the provisions of the law, it is not used differently as the assertion of the majority opinion, but used in combination without distinguishing the concept of time. For example, the statement of witness such as victim prepared by a judicial police officer is stipulated in Article 313(1) of the Act, and the term "the defendant or a person other than the defendant" is covered by the term "the defendant or the defendant" in addition to the provision of Article 312 of the Act, despite the use of the term "the defendant", there is no difference in the contents of the statement prepared by the judicial police officer against the witness before the prosecution is instituted.

In short, if the article 312 and 313 of the Act are distinguished based on the statement of witness, it is clear whether the time of preparation is after the prior approval of the prosecution is made, and Article 312 of the Criminal Procedure Act is divided into the statement of the prosecutor, and Article 313 of the same Act provides the statement of the judicial police officer.

In this regard, the premise that the statement under Article 312 of the Act, which the supplementary opinion of the majority opinion is the most important legal basis, refers to only the protocol prepared before the institution of public prosecution, is collapsed.

D. However, it is natural that the admissibility of evidence can be decided according to other rules of evidence even though it is not acceptable that the protocol of statement prepared by the prosecutor after prosecution is uniformly excluded from the admissibility of evidence.

(1) The prosecutor must individually examine the illegality of the procedure in which the witness again receives the witness's statement after the witness examination. In a situation where there is no legitimate ground, and there is no need for the prosecutor to investigate the new matters, etc., the restriction of physical freedom against the witness's will to coincide with the initial witness's statement, illegal confinement without a warrant or laws or regulations, or the execution of unlawful methods of examination, thereby infringing on the human rights of the witness, and thereby causing the result of the violation of the witness's human rights and directly taking into account the principle of court-oriented trial and the principle of direct examination, it is a ground to exclude the admissibility of the witness's statement on the grounds of such illegality in the collection of evidence. In this case, the examination of specific circumstances, such as each content of the

(2) For that purpose, it is necessary to investigate whether the contents of the statement and the contents of testimony in the court are the same as those of the statement prior to prosecution. Even though the statement prior to prosecution and the testimony subsequent thereto are the same as those of the statement prior to prosecution, if the prosecutor has received a re-statement in the intention to induce or compel the prosecutor to change only the person who made the statement or the answer denying the answer without a considerable reason, the illegality of the procedure as seen in the preceding paragraph may be recognized.

However, there is no reason to permit the act of maintaining public prosecution, such as the case where a witness is again requested as a witness, since there is an omission or error in the statement prior to prosecution or the first testimony in the court, or the case where it is inevitable to explain while preparing a drawing, etc., it is impossible to make a sufficient statement after the prosecution.

(3) In light of the reality of the testimony at court, it is difficult to see that it is difficult to completely deny the necessity of re-audit by the prosecutor, and in such a case, it is necessary to investigate the witness as perjury, because it is a method of remedy that provides the witness who has not voluntariness, or has given testimony different from the identification contents, due to external circumstances such as the witness's subjective reasons such as physical and mental disorder, mistake and statement, or intimidation, or the witness who has given testimony different from the identification contents, and that it can be unreasonable demand according to the specific circumstances under the system of the indictment convenience system. Thus, it should also be considered in determining whether there is any procedural illegality.

E. In the instant case, it should be determined whether there is an illegal cause to deny the admissibility of evidence by investigating the contents of the first statement of the Nonindicted Party who made a testimony at once, the contents of the later testimony, the reasons why the prosecutor again received the statement of the Nonindicted Party, its procedural background, and the contents of the statement, etc.

F. Therefore, if the authenticity of the establishment by the person making the original statement is recognized pursuant to Article 312(1) of the Act, and the cross-examination right is guaranteed, the admissibility of evidence shall be admitted, but with respect to the probative value of the evidence, various decisions including Supreme Court Decision 92Do155 Decided August 18, 1992, which are the same purport, including Supreme Court Decision 92Do155 Decided August 18, 1992, have no reason to change the issue or to change it.

The final judgment of the Chief Justice of the Supreme Court (Presiding Justice) is the case where the defendant uses the original judgment of this case, which is the case where he uses the original judgment of this case, which is the case where he uses the original judgment of this case.